Rule 35(b)(1) Statement of Counsel

I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decisions of the Supreme Court of the United States and precedent of this circuit and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in this Court:

1. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002), which instructs that the reasonable accommodation obligation of the Americans with Disabilities Act (“ADA”) generally requires employers to treat employees with a disability “preferentially”; and

2. Holly v. Clairson Industries, LLC, 492 F.3d 1247, 1262 (11th Cir. 2007), which acknowledges that “the very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances.”

I express a belief, based on a reasoned and studied professional judgment, that this appeal involves a question of exceptional importance: whether the ADA normally requires an employer to reassign a disabled employee into a vacant position when she can no longer meet the requirements of her current job but satisfies the employer’s qualification standards for the vacancy. Following Barnett, the Seventh Circuit overruled its own precedent and held that it does. EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012). The Tenth Circuit and D.C. Circuit agree. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc). The panel’s decision thus conflicts with the authoritative decisions of three circuits.

/s/ Gail S. Coleman

Attorney of Record for EEOC

Table of Contents

Rule 35(b)(1) Statement of Counsel....................................................................................... i

Table of Authorities................................................................................................................... v

Statement of the Issue that Merits En Banc Consideration........................................... 1

Statement of the Case............................................................................................................... 1

A. Course of Proceedings and Disposition of the Case............................................. 1

B. Statement of Facts......................................................................................................... 2

C. Panel Decision................................................................................................................. 4

Argument...................................................................................................................................... 6

The panel’s decision, which holds that “the ADA only requires an employer [to] allow a disabled person to compete equally with the rest of the world for a vacant position,” nullifies the ADA provision listing reassignment as a reasonable accommodation..... 6

A. Contrary to the panel’s holding, both the Supreme Court and this Court have explained that “accommodating” may entail granting preferential treatment to disabled employees....................................................................................................................................... 6

B. The panel’s holding conflicts with holdings of the Seventh Circuit, Tenth Circuit, and D.C. Circuit.............................................................................................................. 12

Conclusion................................................................................................................................. 16

Certificate of Compliance

Certificate of Service

Addendum: Panel Decision

Table of Authorities

Cases

*Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc) i, 5, 11, 12, 14-15

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995).............................................. 5, 15

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).................................... 6

EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000)........................... 5, 13, 15

*EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. 2012)............................ i, 5, 12-13

*Holly v. Clairson Indus., LLC, 492 F.3d 1247 (11th Cir. 2007)..................................... i, 6

Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007).............................................. 5, 15

*Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc). i, 5, 12, 13-14

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278 (11th Cir. 1997)......... 12

*U.S. Airways v. Barnett, 535 U.S. 391 (2002)............................................. i, 4, 6-13, 15-16

Statutes

*Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.

§ 12111(8)......................................................................................................................... 8

§ 12111(9)(B)................................................................................................. 6, 7, 11, 14

§ 12112(a)......................................................................................................................... 7

§ 12112(b)(5)(A)........................................................................................... 6, 7, 11, 12

Other Authority

EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335

(Oct. 17, 2002).......................................................................................................... 8, 11

H.R. Rep. No. 485(II), 101st Cong., 2d Sess. (1990), reprinted at 1990

U.S.C.C.A.N. 303.......................................................................................................... 11

Merriam-Webster Dictionary, available at

https://www.merriam-webster.com/dictionary.................................................... 6

Statement of the Issue That Merits En Banc Consideration

Does the ADA’s reasonable accommodation provision require an employer to reassign a disabled employee to a vacant position when she can no longer meet the requirements of her current job but satisfies the employer’s qualification standards for the vacancy?

Statement of the Case

A. Course of Proceedings and Disposition of the Case

The EEOC filed this ADA action against St. Joseph’s Hospital on October 23, 2013. (R.1) The parties filed cross-motions for summary judgment (R.80; R.99) and the district court granted both motions in part. (R.121) The EEOC moved for clarification of the court’s order, and the court granted this motion. (R.126) The case proceeded to a four-day jury trial. (R.178; R.179; R.180; R.181) The jury returned a verdict finding that the Hospital had failed to provide a reasonable accommodation but had acted in good faith. (R.164) The court entered judgment in favor of the Hospital. (R.173) The EEOC moved for judgment as a matter of law (R.183) and to alter the judgment. (R.184) The court denied the EEOC’s motion for judgment as a matter of law and partly granted the motion for alteration of judgment. (R.197) The court then entered an amended final judgment in favor of the EEOC. (R.128) Both parties appealed. (R.211; R.213) A panel of this Court affirmed in part, reversed in part, and remanded with instructions for the district court to enter judgment in favor of the Hospital. (11th Cir. Order 12/7/2016)

B. Statement of Facts

Leokadia Bryk began working as a nurse in the psychiatric department of St. Joseph’s Hospital in 1990. (R.178, Vol. 1 at 74) She developed spinal stenosis, which caused excruciating back pain. (R.82 at 49, 54-57) In 2009, Bryk began to use a cane to alleviate the pain and to provide support. (Id. at 43, 71, 89) Concerned that an unstable patient could grab the cane and use it as a weapon, the Hospital notified Bryk that she could not use the cane in the psychiatric unit. (R.81-1 at 128, 137-39, 156-57; R.96-1 at 138; R.81-10) The Hospital gave Bryk thirty days to obtain a new position or be terminated. (R.91-1 at 190; R.178, Vol. 1 at 102)

Bryk applied for six positions within the thirty-day period and one afterwards. (R.100-39 at 10-12) At trial, the parties focused on her applications for education specialist, care transition coordinator, and home health clinician. (R.178, Vol. 1 at 112, 116, 154-55) She was neither interviewed nor hired for any of these positions. (R.179, Vol. 2 at 20)

The district court refused to instruct the jury that the Hospital was required to reassign Bryk to a vacant position for which she was qualified. “[W]hether Bryk had to compete with others for the vacant positions is one factor, out of many,” the court said, “that the jury may consider regarding the reasonableness of the accommodation.” (R.126 at 1) The court instructed the jury that the thirty-day period that the Hospital gave Bryk to obtain a new position was reasonable as a matter of law. (R.171 at 9)

The jury found that the Hospital had failed to provide a reasonable accommodation by not assigning Bryk to one of the three identified positions. (R.150 at 1) However, the jury also found that the Hospital had acted in good faith. Id. The district court entered final judgment for the Hospital. (R.173)

The EEOC moved for a corrected judgment, arguing that the district court should vacate the jury’s finding of good faith because allowing Bryk to compete for vacancies was not a good faith reasonable accommodation; it was a failure to comply with the ADA. (R.183 at 6-9) The district court rejected this argument. (R.197 at 6-8) The EEOC argued in the alternative that good faith is a defense only to damages, not to liability. (R.184 at 3) The district court rejected the Hospital’s claim that the EEOC had waived this argument, agreed with the EEOC on this point, and issued an amended judgment in favor of the EEOC. (R.197 at 14-15; R.198)

Having rendered judgment for the EEOC, the court proceeded to consider the EEOC’s request for equitable relief. Based on its ruling that the ADA does not mandate reassignment to a position for which a disabled employee is qualified, the court declined to order an injunction barring the Hospital from refusing to reassign, without competition, disabled individuals to vacant positions for which they are qualified and in which they have expressed interest. (R. 197 at 15) The court also denied back pay and front pay. Id. at 15-17. It declined to order reinstatement outright, stating that Bryk was merely entitled to the “opportunity for reinstatement.” Id. at 17. Both parties appealed.

C. Panel Decision

The panel rejected the EEOC’s contention that the ADA requires employers to reassign a disabled employee to a vacant position when she can no longer meet the requirements of her current job but satisfies the employer’s qualification standards for the vacancy. The panel reasoned that the ADA “offers a non-exhaustive list of accommodations that ‘may’ be reasonable,” and said that the statute’s permissive language suggests that “reassignment will be reasonable in some circumstances but not in others.” Slip Op. at 23.

Without noting that U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397 (2002), explained that a “disability-neutral rule cannot by itself place [a reasonable] accommodation beyond the Act’s potential reach,” the panel held that employers must only provide accommodations that are “‘reasonably available under the employer’s existing policies.’” Slip Op. at 23 (quoting Terrell v. USAir, 132 F.3d 621, 627 (11th Cir. 1998)). Specifically, the panel said that “the ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position.” Slip Op. at 26.

Barnett, the panel said, is consistent with this understanding. The Supreme Court held in Barnett that it is not reasonable in the “run of cases” to require reassignment in violation of a seniority system. 535 U.S. at 403. Although this case does not involve a seniority system, the panel applied the same logic here. “[E]mployers operate their businesses for profit, which requires efficiency and good performance. Passing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance. In the case of hospitals, which is this case, the well-being and even the lives of patients can depend on having the best-qualified personnel. Undermining a hospital’s best-qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients.” Slip Op. at 26.

The Fifth and Eighth Circuits, the panel said, agree with this conclusion. The panel ignored that the Fifth Circuit case, Daugherty v. City of El Paso, 56 F.3d 695, 709 (5th Cir. 1995), pre-dates Barnett. The panel also ignored that the Eighth Circuit case, Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007), relied upon a Seventh Circuit decision which that court subsequently overruled in light of Barnett. See Huber, 486 F.3d at 483-84 (citing EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027-28 (7th Cir. 2000), overruled by EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012)).

In a footnote, the panel dismissed as irrelevant the decisions of three circuits that have concluded, contrary to the panel, that the ADA requires reassignment without competition. Id. at 27 n.6 (discussing United Airlines, 693 F.3d at 760; Smith v. Midland Brake, Inc., 180 F.3d 1154 (10th Cir. 1999) (en banc); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc)). The panel characterized those decisions as dicta and did not address their reasoning.

Argument

The ADA’s plain language requires employers to provide a reasonable accommodation for otherwise qualified individuals with a disability and defines the failure to do so as one form of “discrimination.” 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations “may include” a variety of options, including “reassignment to a vacant position.” Id. § 12111(9)(B).

A. Contrary to the panel’s holding, both the Supreme Court and this this Court have explained that “accommodating” may entail granting preferential treatment to disabled employees.

An “accommodation” is an exception to a generally applicable rule. Barnett, 535 U.S. at 397 (“By definition any special ‘accommodation’ requires the employer to treat an employee with a disability differently, i.e., preferentially.”); Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1262 (11th Cir. 2007) (“[T]he very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances.”); cf. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (accommodation for religious practices under Title VII requires affirmative modification of neutral rules); see also Merriam-Webster Dictionary (defining “accommodation” as an “adaptation, adjustment”), available at https://www.merriam-webster.com/dictionary/accommodation. The fact that an accommodation would violate a disability-neutral rule “cannot by itself place the accommodation beyond the Act’s potential reach. Were that not so, the ‘reasonable accommodation’ provision could not accomplish its intended objective.” Barnett, 535 U.S. at 397.

The panel decision ignores this binding precedent, reasoning that “‘the intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities’ . . . . ‘[T]he ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.” Slip Op. at 27 (quoting Terrell v. USAir, 132 F.3d 621, 627 (11th Cir. 1998)). This analysis wrongly conflates the ADA’s general nondiscrimination provision, 42 U.S.C. § 12112(a), with its reasonable accommodation provision, id. § 12112(b)(5)(A). The nondiscrimination provision does require equal treatment. As Barnett states, however, the reasonable accommodation provision requires more.

Rather than grappling with the meaning of an “accommodation” requirement, the panel focused on the ADA’s use of the word “may” in the reasonable accommodation provision. Slip Op. at 23. As the panel observed, the ADA provides a non-exhaustive list of potential modifications that “may” constitute reasonable accommodations, including “reassignment to a vacant position.” 42 U.S.C.

§ 12111(9)(B). “The ADA does not say or imply that reassignment is always reasonable,” the panel concluded. “To the contrary, the use of the word ‘may’ implies just the opposite: that reassignment will be reasonable in some circumstances but not in others.” Slip Op. at 23.

The panel misreads the statutory provision, placing its decision at odds with Barnett. It is the entire phrase – “reasonable accommodation” – that the statute explains “may” include reassignment. The panel is correct that reassignment is not always a reasonable accommodation, but not for the reasons the panel gave. A reasonable accommodation must enable the disabled employee to perform the essential functions of the job that she holds or desires. Id. § 12111(8). Every case is fact-specific, and the type of accommodation that would enable one employee to perform the essential functions of her job might be completely different from the type of accommodation that would enable another employee to perform the essential functions of a different job. This is why the ADA says that the listed accommodations “may” be reasonable accommodations in any given case. See Barnett, 535 U.S. at 400 (a modification or adjustment must be effective to accommodate a disabled individual).

The EEOC has long taken the position that employers should first seek to accommodate employees in their current jobs, and that reassignment is an accommodation of last resort. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, at *20 (Oct. 17, 2002) (“EEOC Guidance”). When more than one reasonable accommodation is possible, employers are free to choose among them. However, the reasonable accommodation requirement is mandatory. Thus, when it is impossible to accommodate an employee in her current job, employers must turn to reassignment.

The Supreme Court has explained that reassignment is reasonable as a possible accommodation “normally” and “in the run of cases.” Barnett, 535 U.S. at 402-03 (citing 42 U.S.C. § 12111(9)). The Barnett Court articulated a narrow exception for seniority systems based on the special status that such systems hold in American labor law and on their importance in labor-management relations. Id. at 403-04 (noting that without such an exception, “employees’ expectations of consistent, uniform treatment . . . upon which the seniority system’s benefits depend” would be undermined). Even in the context of seniority systems, the Barnett Court left open the possibility that “special circumstances” might make assignment to a vacant position reasonable in a particular case. Id. at 405.

The panel decision erroneously used Barnett’s limited exception for “uniform, impersonal” seniority systems to carve out a broad exception for all disability-neutral rules. Slip Op. at 26. Unlike seniority systems, however, other neutral rules hold no special status in American labor law. Additionally, as the Supreme Court emphasized, “[m]any employers will have neutral rules governing the kinds of actions most needed to reasonably accommodate a worker with a disability. . . . Yet Congress, while providing [examples of reasonable accommodations], said nothing suggesting that the presence of such neutral rules would create an automatic exemption.” Barnett 535 U.S. at 398. The point of an accommodation requirement is that the employer adapt its neutral rules, not that it remain inflexible.

In this case, the panel said that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” Slip Op. at 26. The panel stated categorically that “[p]assing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” Id. This conclusion ignores two key facts.

First, employers know what their own jobs entail, and they set their own qualification standards. Anyone meeting an employer’s qualification standards should be fully capable of “efficiency [and] good performance.” If an employer requires secretarial candidates to type 100 words per minute, for instance, a disabled employee who types 110 words per minute will be successful in the job notwithstanding the existence of another applicant who types 120 words per minute. Likewise, if an employer has a 40 pound lifting requirement, a disabled employee who can lift 45 pounds will succeed in the job even though another candidate can lift 50 pounds. Of course, in many cases what makes one candidate “more qualified” than another cannot be so easily quantified. A “best-qualified” policy therefore differs from the “uniform, impersonal operation of seniority rules” that led the Barnett Court to create the limited exception for seniority systems. Barnett, 535 U.S. at 404.

Second, the ADA makes it mandatory for employers to provide reasonable accommodations for their disabled employees and expressly identifies reassignment as a form of reasonable accommodation. 42 U.S.C. §§ 12111(9)(B), 12112(b)(5)(A). The purpose of reassignment is to prevent an employee who “can no longer perform the essential functions of the job that he or she has held . . . from being out of work and [to prevent the] employer from losing a valuable worker.” H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 63 (1990), reprinted at 1990 U.S.C.C.A.N. 303, 345. If an inflexible adherence to a “best-qualified” policy always overrides a reassignment request, as the panel held, it would eviscerate reassignment as a possible accommodation. To the extent that employers are constrained to some degree by an accommodation obligation in filling a vacancy, that constraint reflects a policy choice Congress made when it enacted the ADA. See Barnett, 535 U.S. at 397 (ADA “requires preferences … for those with disabilities to obtain the same workplace opportunities….”).

Exceptions to the reassignment obligation protect employers. An employer need not offer reassignment to prospective employees or to an employee who is entitled to a different job by reason of seniority or who can be accommodated in her current job. Nor must an employer bump another employee, create a new position, promote the employee, violate the terms of a seniority system, or offer a job for which the employee is not fully qualified. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998); EEOC Guidance, 2002 WL 31994335, at question 24. If the employee is qualified for more than one vacancy, the employer may choose among appropriate positions and need not reassign the employee to the position the employee prefers. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997).

Finally, the Hospital, like any other employer, is free to prove that reassignment to a particular job would constitute an “undue hardship.” 42 U.S.C.

§ 12112(b)(5)(A). If an employer establishes this defense, the ADA does not require reassignment. The fact that certain assignments might be inappropriate, however, does not mean that employers are free to disregard the ADA’s reassignment requirement “in the run of cases.” See Barnett, 535 U.S. at 402-03.

B. The panel’s holding conflicts with holdings of the Seventh Circuit, Tenth Circuit, and D.C. Circuit.

Three circuit courts agree with the EEOC that an employer must ordinarily reassign a disabled employee into a vacant position when she cannot be accommodated in her current job and she meets the employer’s qualification standards for the vacancy. EEOC v. United Airlines, Inc., 693 F.3d 760, 761 (7th Cir. 2012); Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164 (10th Cir. 1999) (en banc); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc). The panel summarily rejected these precedents, wrongly characterizing their holdings as dicta and not explaining why their reasoning was incorrect. Slip Op. at 27 n.6.

In United Airlines, 693 F.3d at 761, the Seventh Circuit ruled that employers generally must reassign disabled employees who cannot be accommodated in their current jobs into vacancies for which they are qualified. Although the court had binding precedent holding otherwise, Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), it overruled that precedent in light of Barnett. The United Airlines court explained, Barnett “rejected [an] anti-preference interpretation of the ADA, noting that this argument ‘fails to recognize what the Act specifies, namely that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.’ Merely following a ‘neutral rule’ did not allow U.S. Airways to claim an ‘automatic exemption’ from the accommodation requirement of the Act. Instead, U.S. Airways prevailed because its situation satisfied a much narrower, fact-specific exemption based on the hardship that could be imposed on an employer utilizing a seniority system.” Id. at 763 (internal citations omitted). The Seventh Circuit distinguished best-qualified policies from seniority systems because “the violation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.” Id. at 764.

The Tenth Circuit, sitting en banc, also rejected the proposition that a “best-qualified” hiring policy can override the ADA’s reasonable accommodation requirement. Noting that it was “required” in its opinion to determine the scope of the reassignment obligation, the court held that as long as an employee satisfies the qualification standards for a vacancy, the employer must generally reassign her without regard to the existence of other applicants. Smith, 180 F.3d at 1159, 1164. A contrary rule, the court said, would “judicially amend the statutory phrase ‘qualified individual with a disability’ to read, instead, ‘best qualified individual, notwithstanding the disability.’ However, these are not the words as Congress wrote them . . . .” Id. at 1167. Responding to an argument (which the panel adopted here) that the ADA’s reassignment obligation is “no more than a duty merely to consider without discrimination a disabled employee’s request for reassignment along with all other applications the employer may receive,” the Tenth Circuit said that “[w]e reject this narrow definition of reassignment, both because it does violence to the literal meaning of the word reassignment and because it would render the reassignment language in 42 U.S.C. § 12111(9) a nullity.” Id. at 1164.

The D.C. Circuit also requires employers to grant disabled employees preferential treatment when using reassignment as a form of reasonable accommodation. In Aka v. Washington Hospital Center, the en banc court relied not only on the plain meaning of the word “reassign” but also on legislative history to hold that “[a]n employee who is allowed to compete for jobs precisely like any other applicant has not been ‘reassigned’; he may have changed jobs, but he has done so entirely under his own power rather than having been appointed to a new position.” 156 F.3d at 1302. “[T]he core word ‘assign’ implies some active effort on the part of the employer.” Id. at 1304. The court expressly rejected the suggestion, which the panel adopted here, that the ADA is not an affirmative action statute. “Although the ADA’s legislative history does warn against ‘preferences’ for disabled applicants,” the court said, “it also makes clear that reasonable accommodations for existing employees who become disabled on the job do not fall within that ban.” Id. (citations omitted). The employer in Aka argued that it could not reassign the plaintiff because doing so would conflict with a collective bargaining agreement. Id. at 1302. The D.C. Circuit remanded for the district court to determine in the first instance whether the collective bargaining agreement did, in fact, conflict with the ADA and left open the question of whether a collective bargaining agreement, like the seniority system in Barnett, could exempt employers from following the general rule of mandatory reassignment. Id. at 1301.

The panel did not mention, let alone analyze, the reasoning of these courts. Instead, it relied on the flawed reasoning of the Fifth and Eighth Circuits. Slip Op. at 27. In Daugherty v. City of El Paso, 56 F.3d 695, 709 (5th Cir. 1995), a case that pre-dates Barnett, the Fifth Circuit refused to “read the ADA as requiring affirmative action in favor of individuals with disabilities.” Barnett has squarely overruled this approach, explaining that the ADA does, indeed, require “preferential” treatment. Barnett, 535 U.S. at 397. The Eighth Circuit purported to consider Barnett, but it, too, wrongly said that the ADA does not require “affirmative action.” Huber, 486 F.3d at 483. Moreover, the Eighth Circuit erroneously read Barnett’s exclusion for seniority systems as extending to all neutral policies, which it expressly does not. Id. at 483-84. Finally, the Eighth Circuit relied upon Humiston-Keeling, 227 F.3d at 1027-28, the case which the Seventh Circuit subsequently overruled in United Airlines, 693 F.3d at 761.

Conclusion

Where no accommodation exists that would enable a disabled employee to remain in her current job, the only possible accommodation is reassignment. By definition, all accommodations require “preferential” treatment. Barnett, 535 U.S. at 397. This means that when a disabled employee cannot be accommodated in her current job but satisfies the employer’s qualification standards for a vacancy, her employer generally must reassign her to that vacant position. The employer sets its own qualification standards with full knowledge of what a job entails. An employee who meets those standards will presumably perform the job correctly. Reassigning her, rather than making her compete with all other applicants, is therefore reasonable “in the run of cases.” Barnett, 535 U.S. at 402-03.

The panel’s decision misreads the ADA, ignores controlling precedent, and conflicts with the holdings of three circuit courts. For all of these reasons, the EEOC respectfully asks this Court to grant rehearing or rehearing en banc.

Respectfully submitted,

JAMES L. LEE /s/ Gail S. Coleman

Deputy General Counsel Attorney

U.S. EQUAL EMPLOYMENT

JENNIFER S. GOLDSTEIN OPPORTUNITY COMMISSION

Associate General Counsel Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov